Messages in a bottle tossed into the sea, seeking some semblance of "Truth," jogging my memory, not just about "legal" issues, but anything I've heard, learned, discovered, or experienced that contradicts "conventional wisdom" or "common sense," or may prove interesting or valuable.

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Wednesday, December 25, 2013

When my criminal lawyer friends get together we love to tell “war stories” about the colorful characters, mostly clients, judges, and other lawyers, that stand out in our memories. Every once in a while, some of these stories turn up in television or film scripts, which is not surprising for L. A. where you can’t go to a courthouse, cocktail party, or golf course without running into cop or lawyer who would rather be a screenwriter. My recent reading has revealed that there is nothing new about this. Way, way back nearer the turn of the last century, two former newspapermen turned their war stories and anecdotes about people they knew (and heard of) during their time on the beat into a play which critics have called one of, if not the, greatest American comedy of all time. In his book, “The Front Page: From Theater To Reality,” (2002) George W. Hilton combed every word of the original text of the play and researched every name and incident mentioned. His meticulous annotations are a treasure of characters and events that flesh out an entire era – his 184 page book contains 222 footnotes. He was able to uncover many of the sources of the references in the play. In doing so, he managed to vividly sketch the entire colorful era of 1920's Chicago, an epoch which has become such a permanent touchstone of American popular culture.

In his youth, Charles MacArthur (b. 1895) had worked for the Chicago Herald & Examiner and Ben Hecht (b.1893) had written for the Chicago Journal. They had both been on the crime beat, Hecht from 1910 when he was 17, MacArthur from 1915, at 20 years old. By 1927 they each had come to New York to write plays. They got together there and it is not hard to imagine that they waxed nostalgic, sharing memories of their youth, until someone (maybe MacArthur’s bride, the actress Helen Hayes) suggested that the stories might make a pretty good play. Hecht and MacArthur later asserted that they began by intending to expose the dark side of the journalism trade and instead wound up writing a loving but honest satire of the world they knew. As they wrote in their epilogue to the published play,

“When we applied ourselves to write a newspaper play we had in mind a piece of work which would reflect our intellectual disdain of . . . the Newspaper. What we finally turned out . . . is a romantic and rather doting tale of our old friends — the reporters of Chicago.

“It developed in writing the play that our contempt for the institution of the Press was a bogus attitude; that we looked back on the Local Room where we had spent half our lives as a veritable fairyland — and that we were both full of a nostalgia for the bouncing days of our servitude.

“The same uncontrollable sentimentality operated in our treatment of Chicago which, as much as any of our characters, is the hero of the play. The iniquities, double dealings, chicaneries, and immoralities which as ex-Chicagoans we knew so well returned to us in a mist called the Good Old Days, and our delight in our memories would not be denied.

“As a result The Front Page, despite its oaths and realisms is a Valentine thrown to the past . . . .”

The era they write about was known for the wildly competitive world of newspaper reporting, in which getting the scoop – with blatant disregard of ethics, legalities, or even the facts – was common. The beat reporters were crass, crude, cynical, mostly young men slaving long hours for low pay and receiving little recognition beyond that of their peers. The play is in three acts but one scene, the pressroom in the Chicago Criminal Courts Building. In the beginning a gaggle of reporters are playing cards and waiting for news about a hanging they are there to cover. The authors describe the scene this way:

“It is a bare, disordered room, peopled by newspapermen in need of shaves, pants pressing, and small change. Hither reporters are drawn by an irresistible lure, the privilege of telephoning free.

“. . . An equally important lure is the continuous poker game that has been going on now for a generation, presumably with the same pack of cards. Here is the rendezvous of some of the most able and amiable bums in the newspaper business; here they meet to gossip, play cards, sleep off jags, and date up waitresses between such murders, fires, riots, and other public events as concern them. . . . .

“Four men are playing poker . . . four braves known to their kind as police reporters. Catatonic, seedy Paul Reveres, full of strange oaths and a touch of childhood. . . .”

The playwrights used two events as the core of their story. One was the practical joke played on MacArthur by his managing editor, Walter Howey. MacArthur was to marry another reporter, Carol Frinck. Before they left for New York, Howey gave MacArthur a present of his prized gold watch. After they left, he wired Gary, Indiana police to arrest MacArthur for stealing his watch. (They used Howey’s legendary: “The son-of-a-bitch stole my watch!” as one of the most famous curtain lines in Broadway history.)They based one central character, the managing editor “Walter Burns,” on the character traits which the incident suggested. “Burns” will stop at nothing to scoop competing newspapers, especially if the story ridicules or might even bring down corrupt politicians – especially the mayor and sheriff – members of the party supported by rival papers. The personal lives of his employees – reporters included – must yield to the good of the newspaper. When told that his rewrite man, “Duffy,” is momentarily indisposed to treat his diabetes, Burns fumes: “It serves me right for hiring someone with a disease!”For the character of the reporter who works for and is manipulated by Burns, they chose for a model a reporter they both knew well, who was considered one of the best of the leg men on the Chicago crime beat in their day, a man named John Hilding Johnson. They named their character “Hildebrand ‘Hildy’ Johnson.” When “Hildy” enters, the authors note:

“. . . . Hildy is of a vanishing type — the lusty, hoodlumesque, half-drunken caballero that was the newspaperman or our youth. Schools of journalism and the advertising business have nearly extirpated the species. Now and then one of these boys still pops up in the profession and is hailed by his editor as a survivor of a golden age. The newspapermen who have already appeared in the pressroom are in reality similar survivors. Their presence under one roof is due to the fact that Chicago is a sort of journalistic Yellowstone Park offering haven to a last herd of fantastic braves that once roamed the newspaper offices of the country. . . .”

Hecht and MacArthur must have had great fun naming their characters after the people they used as templates for them. They hardly bothered to disguise many of their choices, merely changing a few letters of names to avoid lawsuits. For example, Peter M. Hoffman was sheriff of Cook County. In the play, the sheriff is named “Peter B, Hartman.” A reporter named McHugh becomes a reporter named “McCue.” Roy Baenzinger becomes “Roy Bensinger.” The second event that became central to the plot was the escape from the Chicago city jail by a cop killer named Tommy O’Connor four days before his date with the hangman in 1921. The plot of the play turns on the escape of “Earl Williams” the night before his execution. Instead of a petty gangster, they make Williams into a pathetic, insane, radical, who shot a policemen. As a complication, they made the murdered cop “colored” (in the accepted vernacular of the time - more about that later).This beat was important because in the 1920's the African American community still remembered Lincoln and thus voted predominantly Republican. It would not be until FDR, after 1933, that the bloc vote would shift to the other side. In the play (as in Chicago at the time) the mayor and sheriff were Republicans and desperate to retain the “colored vote.” Thus, the rapid conviction and execution of a killer of a “colored cop” was politically correct (to use an anachronistic phrase). Some of the satire in the play is still timely. For example, these days the L.A. sheriff is in trouble from a scandal involving the hiring of unqualified employees based on preference to so-called “friends of the sheriff.”

In this play set almost a century ago, the sheriff and mayor have this colloquy after the escape (The Front Page, Act II):

SHERIFF: Listen, Fred. Stop worrying, will you? Just do me a favor and stop worrying! I’m doing everything on God’s green earth! I’ve just sworn in four hundred deputies!

MAYOR: Four hundred! Do you want to bankrupt this administration?

SHERIFF: I’m getting them for twelve dollars a night.

MAYOR: Twelve dollars —! For those goddamn uncles of yours? What do you think this is—Christmas Eve?

SHERIFF: (With Dignity) If you are talking about my brother-in-law he has worked for the city for fifteen years.

MAYOR:. . . Pete, I’m scratching your name off the ticket.

SHERIFF:Fred!

MAYOR:Now, Pete! Please don’t appeal to my sentimental side . . .

SHERIFF:Fred, I don’t know what to say. A thing like this almost destroys a man’s faith in human nature . . .

In the play, the mayor is named “Fred A. Busse.” A man of the same name was mayor of Chicago until 1911. I suspect the name was used because of its comic sound. Hecht was known for this playfulness, using “Dr. Egelhofer” as the name of the psychiatrist in this play and also in his screenplay for “Nothing Sacred” (1937). The corruption of the era didn’t leave the newsmen untouched. A 2013 Chicago Tribune article reports the following event, from June 9, 1930:

“Alfred "Jake" Lingle . . . a Tribune police reporter, was heading for the [train station to go to the racetrack]. An ace at covering sensational crime stories, he was about to become one. A tall, blond man walked up behind him and put a bullet through his head. Lingle's killer paused over the body. Then he dropped the murder weapon, a .38-caliber revolver, and got away.

“Lingle epitomized the "Front Page" journalism of his day, cavorting with cops and robbers and working his sources in speakeasies. A street reporter, he never rolled paper through a typewriter. As in the Ben Hecht-Charles MacArthur play about Chicago journalism, Lingle phoned in scoops to rewrite men. The popular play was a work of fiction, but it was based on fact. The world of Chicago newspapers was viciously competitive, frequently unscrupulous, and not too worried about the truth.

“But even in that era, Lingle turned out to be exceptional. In the aftermath of his shooting, Chicago newspapers decried the slaying as a mob attempt to silence the press. [ ] But as the reporter's mysterious private life came to light, a different picture developed. He was paid $65 a week but had an annual income of $60,000. When he was killed, he had $1,400 in his pocket.

“Lingle's friends ranged from politicians and city payrollers to the henchmen of crime boss Al Capone. ‘Big Al’ thought enough of Lingle to give him a diamond-studded belt buckle. Lingle, as the Tribune reported, had been a middleman for a variety of characters seeking favors from Capone and the police commissioner, who resigned after the story broke. ‘A newspaper,’ Tribune city editor Robert M. Lee wrote with an almost audible sigh, ‘is the least likely to hear bad news about its own.’

“As for Lingle's killer, police rounded up 664 minor hoodlums. Nothing but headlines came of it. Then in January 1931, Chicago detectives got a tip and arrested a St. Louis gunman, Leo V. Brothers. Seven witnesses fingered him as the shooter; seven others swore he was not the man. Brothers was convicted, but he received the minimum sentence for murder--14 years. He served eight of them, his mouth shut the whole time. The questions of who wanted Lingle killed and why were never answered.”

In the play, Hildy and Burns hide the meekly pathetic condemned prisoner in a roll top desk of the pressroom, intending to break the story before turning him in.Burns dictates the story’s lead in the purplest prose: “The Chicago Examiner again rode to the rescue of the city last night in the darkest hour of her history! (Lowering his voice.) Earl Williams, the Bolshevik Tiger, who leaped snarling from the gallows upon the flanks of the city, was captured ...”This event of course never happened in “real life” but was not too far removed from actual schemes used by the papers of the era to get scoops and circulation.For instance, in one line, Hildy takes credit for “the Fitzgerald confession.” Hilton explains that a Herald & Examiner reporter, Harry Romanoff, in 1919 was able to persuade a child murderer to confess by a subterfuge. He bought a doll, told Fitzgerald it was the child’s and her dying mother’s last wish to see her death solved. Howey published the confession in the newspaper, trumpeting it as a great coup. Hildy also claims to have written the “Ruth Randall diary.” This too was based on reality although “Hildy” didn’t write it. Hilton writes that managing editor Howey ordered that in cases involving attractive women, “first, get the story, second, get a picture, third, produce a diary.” The implication to “produce” included fabrication, if needed. In 1920, a Herald & Examiner editor named Frank Carson had somehow obtained from police custody a sensational diary written by Ms. Randall, who had killed her married lover and then committed suicide.The male characters in the play are depicted as unapologetically misogynistic. Walter Burns expresses the prevailing attitude toward the “other sex” when he derides Hildy’s devotion to his fiancee, Peggy.

HILDY: You know a lot about women! You and your goddamn stable of tarts. . . .

WALTER:What do you think women are? Flowers? Take that dame that shot the dentist! And Mrs. Vermilyea! Husband comes home all worn out, hungry, takes a spoonful of soup and falls dead! Arsenic! And Mrs. Petras! Burning her husband up in a furnace! When you’ve been in this business as long as I have you’ll know what women are! Murderers! Borgias!

Hilton traced the true sources referenced in this speech. There had been reporting about a dentist who was acquitted in the killing his wife’s father. Justice was nonetheless served — he was shot to death by his mother-in-law. “Mrs. Vermilyea” was a woman who took in boarders, including a policeman, who was one of nine which the press declared that she poisoned to death — three of whom she later claimed to have been men who were going to marry her. She had taken the arsenic herself, and was paralyzed as a result. Her trial resulted in a hung jury and apparently she was never retried. The reference to “Mrs. Petras” seems to be an unfair slander. The real woman of that name was the wife of an accused murderer who had loyally stood by him even though he was accused of murdering his former fiancee who was possibly his current lover. He was acquitted and promptly abandoned Mrs. Petras. In another near slander, Walter later mentions the “Clara Hamon murder.” Hilton traced this to the killing of Jacob Hamon, a prominent Republican in Oklahoma. Clara was his mistress and secretary, married to Jacob’s nephew to conceal the liaison. She was charged with the murder and the Hearst papers paid her legal fees. Walter Howey had sent a reporter to cover the trial in hopes of embarrassing the opposing Republicans, but she was acquitted. Walter Burns’s thoughts about women fit in well with the general dialogue spoken by the male characters which is replete with sexist language as well as words that today’s audiences would cringe at because of their blatantly racist, homophobic, and xenophobic content. The “n” word is commonly bandied about by the reporters, as when Hildy asks Walter how far he may go in attacking the mayor in print and Walter answers with the worst slander he can think of: “Call him a n______ if you want to! . . .” Slurs are tossed by others about “polacks,” “wops” and “bohunks.” The prissy reporter, “Bensinger,” who is a poet and germophobic, is widely understood to be less than masculine — compared to his testosterone charged colleagues.

The females in the play are relative stereotypes. “Peggy Grant,” Hildy’s betrothed, is bland, innocent, shrill. Her mother, “Mrs. Grant,” based on Helen Hayes’s mother, is quite properly appalled at the shenanigans by the “hooligans.” “Molly Malloy” is the standard prostitute with a heart of gold. All three women excoriate the men for their lack of morals, ethics, decency. The authors’ note before Peggy’s introduction gives us a clue to their view of women :

“PEGGY, despite her youth and simplicity, seems overwhelmingly mature in comparison to Hildy. As a matter of fact, Peggy belongs to that division of womanhood that dedicates itself to suppressing in its lovers or husbands the spirit of D’Artagnan, Roland, Captain Kidd, Cyrano, Don Quixote, King Arthur, or any other type of the male innocent and rampant. In her unconscious and highly noble efforts to make what the female world calls ‘a man’ out of Hildy, Peggy has neither the sympathy nor acclaim of the authors, yet regarded superficially, she is a very sweet and satisfying heroine.”

As heroine, Peggy is determined to rescue Hildy from his awful job and his evil boss and deliver him into a suburban home and a respectable ad agency job. At first, yielding to Peggy’s loving influence, Hildy seems anxious to escape from his miserable existence.

HILDY:Journalists! Peeking through keyholes! Running after fire engines like a lot of coach dogs! . . . Stealing pictures off old ladies of their daughters that get raped in Oak Park. A lot of lousy, daffy, buttinskis, swelling around with holes in their pants, borrowing nickels from office boys! And for what! So a million hired girls and motormen’s wives’ll know what’s going on. . . . I’ve been a newspaperman for fifteen years. A cross between a bootlegger and a whore. . . .”

But when the blockbuster story of the escape breaks, and Hildy falls back under Walter’s spell, Peggy can’t save him:

PEGGY: (to Walter): You’re doing this to him! He was going and you stopped him!

Despite her pleas, Hildy continues to type, begging her to let him work. Finally, exasperated, she accuses him of being “a heartless, selfish animal without any feelings! He answers:

HILDY:Shut up, will you? Yeah! That’s what I am! A bum! Without any feelings! And that’s all I want to be! . . . . If you want me you’ll have to take me as I am instead of trying to turn me into some lah de dah with a cane! I’m no stuffed shirt writing peanut ads. . . . Goddamn it — I’m a newspaper man. . . . (PEGGY exits, her sobs filling the room and corridor.)

Ben Hecht’s became the most important screenwriter of his time and perhaps the most successful of all time. In his biographical memoir, “A Child Of The Century” (1954) he wrote of his former profession:

“No other profession, even that of arms, produces as fine a version of the selfless hero as journalism does . . . What I write is no blanket description of newspapermen. It includes only the kind I once knew and admired . . . They were young, whatever their age. . . A good newspaperman, of my day, was to be known by the fact that he was ashamed of being anything else. He scorned offers of double wages in other fields. He sneered at all the honors life held other than the one to which he aspired, which was a simple one. He dreamed of dying in harness, a casual figure of anonymous power and free. . . Most harried . . . More bedeviled by duties than a country doctor . . . more blindly subservient . . . than a Marine private . . . [yet he] considered himself, somewhat loonily . . . To be without superiors and a creature always on his own. . . ‘Socially, a journalist fits in somewhere between a whore and a bartender but spiritually he stands beside Galileo. He knows the world is round.’”

I might be exercising my own sentimental soul, but the description seems to fit some of the better criminal defense lawyers I have known and admired — and whose war stories I have shared.

Thursday, November 28, 2013

This story is confirmed in Elmer Bendiner's book, The Fall of Fortresses: A Personal Account of One of the Most Daring - and Deadly - Air Battles of the Second World War (Putnam, 1980: ISBN 0-399-12372-5), p. 30. [After the war, he became a journalist and writer.]

Elmer Bendiner was a navigator in a B-17 during WW II. He tells this story of a World War II bombing run over Kassel , Germany , and the unexpected result of a direct hit on their gas tanks."Our B-17, the Tondelayo, was barraged by flak from Nazi antiaircraft guns. That was not unusual, but on this particular occasion our gas tanks were hit. Later, as I reflected on the miracle of a 20 millimeter shell piercing the fuel tank without touching off an explosion, our pilot, Bohn Fawkes, told me it was not quite that simple.

"On the morning following the raid, Bohn had gone down to ask our crew chief for that shell as a souvenir of unbelievable luck. The crew chief told Bohn that not just one shell but 11 had been found in the gas tanks. 11 unexploded shells where only one was sufficient to blast us out of the sky. It was as if the sea had been parted for us. A near-miracle, I thought. Even after 35 years, so awesome an event leaves me shaken, especially after I heard the rest of the story from Bohn.

"He was told that the shells had been sent to the armorers to be defused. The armorers told him that Intelligence had picked them up. They could not say why at the time, but Bohn eventually sought out the answer.

"Apparently when the armorers opened each of those shells, they found no explosive charge. They were as clean as a whistle and just as harmless. Empty? Not all of them! One contained a carefully rolled piece of paper. On it was a scrawl in Czech. The Intelligence people scoured our base for a man who could read Czech. Eventually they found one to decipher the note. It set us marveling. Translated, the note read: "This is all we can do for you now.........""Using Jewish slave labor is never a good idea."

Monday, November 04, 2013

In Greek mythology, Sisyphus was the king of Corinth who offended the gods and was punished by being forced for eternity to push an enormous boulder up a hill. When he approached the apex and the successful end of his task, the boulder would roll down the hill to the bottom, requiring Sisyphus to begin again. And again. In an endless loop. The image has sparked the imagination of artists and philosophers throughout the ages, because it seems to speak some universal truth about the human condition. How many people can identify with the sense that their lives are wasted in “an eternity of useless efforts and unending frustration.”While this phrase describes how we defense lawyers often feel about our careers, it is not all grim and depressing. Our forte is the ability to construct arguments for our clients no matter how daunting the task appears. If we apply that talent and skill to this problem, we should be able to retrieve some sort of positive lesson from the facts.Fortunately, there does exist in literature a formidable argument that we can adopt. Albert Camus, the French writer known as for his novels “The Stranger” and “The Plague,” wrote an essay titled “The Myth of Sisyphus.”Camus, an impoverished tubercular pied-noir (the French pejorative term for a white Algerian), stopped working as a journalist when the Germans occupied France. He wrote for the Resistance and wrote his books which could only be published after the Liberation. With Jean Paul Sartre he became known for his philosophical writing after the war, popularized as “Existentialism,” which was misunderstood as defining a uniformly bleak outlook on life (not unlike the pop perversion of Einstein’s theories as “Everything is relative” or “Social Darwinism” defining the goal of life as “survival of the fittest” ). Camus argued that the human condition is basically “absurd” because we live in the certainty that we will all die. That this is so means absolutely nothing to the universe, rather it is part of the cold calculus of nature. Sensing this, some conclude that the logical response is suicide, because life is meaningless. Others turn to religion for succor, imagining an afterlife with rewards or punishment.Camus espoused a third argument: embracing the absurdity of existence and living life fully in the face of it. Even if your life is like that of Sisyphus.He argued that Sisyphus was not to be pitied, but was a heroic figure, to be envied. His famous dictum is:“The struggle toward the heights is enough to fill a man’s heart. One must imagine Sisyphus happy.” All of this of course is difficult if not impossible for our profession. In Law, we are committed to the idea that disputes can be settled by evidence, proof. The word “reason” and its corollaries “reasonable” “rationality” as in reasonable cause, reasonable doubt . . . are achievable real goals. We are always fighting against arbitrary, illogical conclusions based on prejudice rather than provable facts. Camus as philosopher held that the world was inherently “unreasonable,” and “unknowable.” The absurdity rose from the sentimental romantic striving for meaning and hope for a better life even though, no matter how hard we fight, our lives are finite. We all end the same way.

“But for Camus, it was Sisyphus’s scorn of the gods, his hatred of death, and his passion for life in the face of a futile struggle that illustrated his essential point: man knows himself to be the master of his days.”

Camus and the post war philosophers were certainly influenced by their experiences under Nazi domination. For that generation, it would be hard for anyone with eyes to maintain an optimistic outlook about the human condition. Who lived or died depended on luck, an arbitrary calculus that jettisoned reason for hate and a twisted philosophy of genocide and Gotterdammerung. Yet, Camus himself did not sit by and accept the fate of defeat. He actively fought — with words and action — against the evil of collaboration and tyranny. After the war, Camus at first felt the strong emotions of rage against the holocaust and urged “justice without mercy” for collaborators and Nazi war criminals. But after the frenzy of arbitrary trials resulted in executions of some 10,000 supposed collaborators, he changed his mind and became an opponent of capital punishment, writing a famous essay, “Reflections on the Guillotine” (1957) which led a movement which eventually was adopted by France.

Saturday, November 02, 2013

My son was still in high school when he went with me to Monterrey in February, 1998, to the annual Death Penalty Seminar. When he returned to school, he wrote this column for his school newspaper: the Harvard-Westlake Chronicle:

Wednesday, October 30, 2013

Last Saturday I delivered a lecture at the LACBA / ICDA Fall Seminar to about 100 lawyers who needed to gather MCLE credits by the end of the year in order to satisfy their Bar requirements. In other words, a captured audience. To make matters worse, my slot was 1 p.m. to 2 p.m., right after the free lunch, which the attendees were completing as I began. Their post lunch naps ensued. [Having been promised tech support by the Bar’s IT / AV expert, I prepared my presentation on my IPad. As you will see it includes some photos and scans, downloaded and borrowed (for non-profit purposes, I assure any copyright holders). Unfortunately, the AV “expert” had not counted on my limited tech expertise when he had assured me that the wireless connection of my IPad to the video screen would be “no problem.” Now, he revealed that this new system hasn’t been used much before. And I as it turned out, it was not very useful to me.] All of which explains (but as in capital case mitigation, fails to excuse) my hurried and disjointed performance. Like closing arguments, it is sadly true that you give three: the one you prepared, the one you actually gave, and the one you recite in your mind on the way home and repeat over and over again in regret. This blog has served as my soapbox since my son suggested it several years ago and now this post will I hope be something of a final argument for me.So as I promised those who attended, here is the fuller presentation, with cleverly gathered “slides” to illustrate the brilliant points I tried to make. This is the talk I wanted to give.

“Taking Losses

aka “The Art of Losing”

aka “Surviving Losses”

The art of Losing isn't hard to master;so many things seem filled with the intentto be lost that their loss is no disaster...Elizabeth BishopNeither the title nor its alternates are satisfactory to me. I am not trying to help lawyers to lose their cases. (They are capable of doing that on their own.) Not even trying to make them accept losing. But rather, one of my goals is to give ammunition so that they will not be discouraged by the possibility or even the probability of losing.It is a fact of life that the appointed criminal defense lawyer is likely to “lose” far more cases than he or she “wins.”**** [It must first be noted that the words “lose” and “win” are deceptive. For the appointed criminal defense lawyer wins and losses are relative terms. As an example, one of my early role models was Charlie Gessler, a legendary L.A. Deputy Public Defender. In my early days in the office, Charlie was a “heavyweight,” trying the toughest, most serious cases.] For instance, he defended the fellow called by the press, “The Skid Row Slasher,” title enough to suggest what Charlie was up against. Each day of the trial, he faced the ever more gory details, the mounting evidence against his client. Each noon he would come into the lunchroom with his styrofoam coffee cup and sandwich and chew while taking a ribbing from the lawyers arrayed around the table. “How’d it go today, Charlie?” From the snickering gadflies, none of whom envied Charlie his daunting task of being pummeled into dust each day. Charlie shrugged, said in his usual grave yet calmly enthused voice: “Had a good morning. Think I developed an argument on the ‘use allegation’ in count twenty-six.”That is the kind of sturdy toughness we all would feel blessed to attain. Charlie knew that a “win” might be getting one count dismissed, or one enhancement, or merely (as Hemingway might put it) “dying well.” THE FEAR OF FAILUREOne of the biggest causes of burnout among our breed is the fear of failure. For people who are said to be confrontational and contentious by inclination and by training, I have found that many of my peers actually are terrified of going to trial.Whether this is a matter of ducking a crucible, a revealing test of their talent, skill, judgment . . . Or a perceived risk to their self-esteem, or some other deep character flaw, I will not judge. The fact is that many will duck — possibly at the last moment — they will blink, avoid the risk and take a deal (ironically as you will see if you continue to read — “against their better judgment”). And they may well feel miserable afterward.I know all of this because I must now admit to the world that I have felt this crushing weight many times during my career. Night sweats, headaches, grinding teeth, mental constipation for days on end — all in dread anticipation of an oncoming trial — and the humiliation of another loss. (The feeling, I have learned when describing it to acquaintances, is not unlike the stage fright that confronts actors). The fear of rejection, embarrassment, ridicule, exposure as “a loser” is often more than one can bear. At this late stage in my professional life I want to “give back” by sharing the fruits of my reflection.A WASTED LIFE?Another motivation for my giving this lecture comes from a talk with a friend who is recently retired. He admitted to me that he hated his five years as a public defender almost as much as he hated the next thirty-five years he spent in private criminal practice.

“I chose the wrong profession. At least the wrong side. I loved football, all sports. What I wanted in a career was competition. At first, and later, there were times I liked the gamesmanship, the kick of putting something over on the opponent. But I couldn’t stand losing. Honestly, I never really cared about my clients, I cared about winning. It was me against the world, and the clients were part of the world. I hated what I did for a living. It was all bull____.”

So much for the romance of “The Lost Cause.” Was my friend right? Is it all just a game? Did I accomplish anything worthwhile in forty-three years of practice? Is it a profession or just a sleazy way of milking money from frightened people and / or a foolishly spendthrift government? To put the question starkly: Did I (Gulp!) live a wasted life?For years, since my son urged me to put my thoughts in order, I have been posting observations on this blog. Often I have posed questions and tried to provide answers to conundrums that have haunted me during my career. Recurring questions from friends or lovers: “Why do you defend these people?” “How can you defend someone you know is guilty of horrible crimes?” “How can you sleep at night after getting some heinous criminal off?”From colleagues, the oft repeated head shaking shoulder shrugging complaint: “Why do our clients do stupid things that screw up our cases?” “What’s the use of caring when it is all so futile?”It seemed to me that if I could make some sense out of those issues I might have some sort of peace of mind about my profession, maybe even feel good again and relate that experience to my colleagues so that the poor fools might survive better than I have. You see, when I began, I thought it was a wonderful idea, to defend people against the weight of the all-powerful powers (whoever “They” might be). Looking back, this seems so naive as to be infantile, a child’s fairy tale or a construct of left wing bleeding heart writers in Hollywood.I was raised on the myth of the defense lawyer as hero. My father told me stories about those of his youth: Clarence Darrow against capital punishment (Leopold and Loeb); Sam Leibowitz, who defended the Scottsboro Boys (and then became, to my father’s shame, a “hanging judge”). T.V. provided other examples, some caricatured (“Perry Mason”) and others more serious (“The Defenders”). In school we read “To Kill A Mockingbird” and “Intruder In The Dust.”To a Jewish kid raised in Brooklyn in the 1950's, siding with the underdog was natural. A childhood spent watching the Dodgers (vs. the Yankees, the “evil empire”) and living with the mantra: “wait ‘til next year”was good preparation for a life of “fighting the good fight” and “losing with dignity.”

This myth was reinforced by romantic movies. “Mr. Smith Goes To Washington” — Jimmy Stewart: “The lost causes are the ones worth fighting for.” And “Casablanca” with Bogart “I’m not too good at being noble. . .”

But it doesn’t take long for the reality to bury the myths. Losing takes a dreadful toll. You begin to doubt your talent, skill. Even when you “win” — an argument, or a case — you find that your elation is short-lived. Your main emotion is relief. You know that it is an anomaly. Soon the losses hurt more than the wins feel good. The wounds caused by the lows aren’t healed by the salve of the wins. The result is stress . . . Depression . . . Burnout.

Themis at Old Bailey

Some begin with elevated expectations. Blind Justice with its double edged sword and even scales promising "equal justice under law" misleads.

Others soon cave in to lowered expectations. They yield to The Law of the Roller Coaster: If you are handed a bad case, no matter how high your hopes may soar, you will always end up where your start: with a loser.I remember that in college, I had read about the causes of stress in my Psych I class. The experiment of the “Executive Monkeys” proved that stress could kill.

Rhesus monkeys tortured for "science"

But it also provides some solace in the realization that we are not alone. Our feelings are natural. A universal lesson: Often, results are not commensurate with the effort you expend. In other words, sometimes you may press all the right buttons and still lose. I came across a corollary to this rule in college, when learning another important skill — how to win at blackjack in Las Vegas. Professor Edward O. Thorp’s “Beat The Dealer” proved that there was a right way to play the game. Even if the cards you are dealt give you a low probability of winning a hand, you should still play it in a manner that maximizes your chances. But you should reduce your expectations when dealt the bad hand. Don’t rail at the Fates. The realistic recognition that the odds are against you but that you can still win a share can be uplifting. The baseball analogy, though trite, does apply. If you bat .300 for a career, it means you have failed seven of ten times at bat, but you will be in the Hall of Fame.My retired friend couldn’t handle the stress of always being on the defensive. Good lawyers are naturally argumentative, competitive, aggressive. But defending, especially the appointed criminal defendant, usually requires a more deft touch. We rarely have strong, righteous affirmative legal defenses; we usually rely on the flaws in the prosecution case — it is bad practice to urge “innocence” rather than the more subtle distinction of “not proved guilty beyond a reasonable doubt.” We are rarely in the Perry Mason position of forcefully attacking a witness / victim on the stand. Representing the appointed criminal defendant has stresses over and above that of defending the client who has paid for your services. There is a natural suspicion that what you receive for nothing defines its worth. Your are suspected of being in the pocket of the authorities, the same people who pay the salaries of the judge and prosecutor. Acceptance of the appointment is rarely based on the likelihood of a win which may or may not be the case of taking on a private client. At any time during the case, the client may go off on the lawyer. If in jail, he is influenced by jailhouse lawyers advising him on the side. If out, he may be searching the internet for loopholes. He demands:“Why don’t you file a motion of search and procedure?” “How about a pitcher’s motion?” “I want my (sic) trans Crips!”Your skills at “client control” will be tested throughout, forced to field existential questions: “Do you really believe in my innocence?” When I candidly related to a capital client how strong the prosecution’s case was, he asked: “Are you on my team?” I said, “Not if your team will be executed!”

To add to the problem, clients will often do everything they can to gum up the works. They will present you with a hopeless set of facts caused by their actions and will be angry that you cannot work magic and make it go away. When you find a reasonable way out, chances are they will do something more to screw it up: threaten a witness, pick up a new beef, get thrown in “the hole” for fighting an inmate or assaulting a deputy sheriff. FRIENDS AND LOVERSAfter your hard day at work, you may return to your home where you will be confronted by your loved ones. “How was your day, darling?” Your significant other will ask. You may grumble, unwilling to re-hash the misery of the day. You just want to make love, eat, drink, relax. “But we never communicate.”You sigh, this is dangerous. But how do you start. “I lost a 995 (or 1538.5).”A quizzical look. “Remind me.”You explain — again, about these “technicalities.” “Hours of research. I wrote a terrific P&A. The D.A. never responded, the judge didn’t bother to read it. Just denied, denied.”A sympathetic hug, but then the look. “But darling, your client was really guilty, anyway, wasn’t he?”At family gatherings you are reminded that your parents, though proud when you passed the Bar Exam and were sworn in, sometimes let their friends believe that you prosecute rather than defend criminals.When friends or mere acquaintances (many of mine were civil lawyers, doctors, and their spouses) ask the nasty questions, I tried various strategies, depending on my state of sobriety, my patience, etc. “How can you defend those people?”“For the money.” “But, seriously, you could make far more in some other specialty.”“Sure. But I crave the excitement.”“How can you defend a guilty person?”“You mean a kid possessing marijuana? . . . Or a housewife who shoplifts?”“No, no. I mean a murderer. How can you do it?”“Well, I could tell you that I defend the constitutional rights of the individual against the power of the state.”“Sure you could.”“Well, you’re a doctor, right? If a patient is sick or injured you don’t ask if he is a bad person before you treat him.”“If he can pay or has insurance.”“And you do your best, don’t you? Well, isn’t the highest calling of a doctor to treat the most seriously ill patient? The greater the risk to life the greater the skill required ... the greater the challenge . . . And the greater the satisfaction when you do your job right.”These answers sufficed in the 1960's when I began. Those of my generation, after all, had been raised with the same myths about heroes and anti-heroes. And it was the era when challenging The Establishment was considered . . . Cool.But in the 70's, while I maintained these values, others of my generation began to drift. The horrors inflicted by such as the Manson family changed attitudes about the death penalty. The feminist revolution raised consciousness about sexism in the legal system. Talk of high crime rates and judges soft on crime permeated the culture. The Warren court yielded to the Burger court, then the Renquist court. . . .

Women I knew asked: “How can you defend — rapists? Pimps? Child molesters?”They pushed changes in the law to make it easier to obtain convictions: eliminating cautionary instructions, the need for corroboration, any inquiry into the “victim’s” mental state; admitting the accused’s priors. All the while, lengthening sentences, the dire consequences of convictions.

I tried to remind them of my old heroes like “Atticus Finch” who represented a black man accused of raping a white woman. In the ardor of the feminist enlightenment, a fact was forgotten: Laws that make it easier to convict while increasing punishments are risky. They increase the chances of convicting innocent people. It has taken heroic work by such as the lawyers and volunteer law students of the Innocence Project to use DNA testing to expose the numbers of false convictions for rapes that resulted from these laws. In the 80's, the nasty questions were expanded as society became less tolerant of wrongdoing: “How can you defend . . . Crack dealers? ... Drunk Drivers?” And then — up to now: “Street gangsters? Bullies? Cigarette smokers?”When my erstwhile “radical” friends faded to “liberal” then to “moderate” and eventually “conservative” and / or “libertarian,” I had to construct a better argument.

“Hey, I am the only true conservative / libertarian here. I fight for the individual against the greatest exercise of power a state can exert: imprisoning or executing him or her. Remember, Barry Goldwater said: 'Extremism in the defense of liberty is a virtue!'"Eventually, I felt that I was the last person to believe the classic dictum: “It is better that ten guilty persons escape than that one innocent suffer.”

Many, including the members of the appellate courts now write that no one is promised a “perfect trial” and that notions like “harmless error” and “finality” and “speedy justice” demand affirming convictions despite deficient evidence.These judges apparently agree with those who would turn Blackstone on his head: it is better to convict ten people on less than convincing evidence than to allow one suspected child molester or potentially dangerous serial murderer loose.In my bitter moments, I have been tempted to respond to the nasty questions like this:“How do you feel when you get a child molester off?”“Great! They are well-known recidivists. So they are likely to do it again and I can defend them again and again. And make more and more money!”(Thereby eliciting the satisfying open mouthed gape — as the response from the audience in Mel Brooks’ “The Producers”).

THE CLIENT AS ADVERSARYOnce having dealt with loved ones and social acquaintances, the lingering source of our stress is always going to be our clients.I often think that a basic flaw in our system is the “promotion” of criminal lawyers to other work. When a public defender is made a supervisor in that office or any defense lawyer is named to the bench, there is bound to be trouble. You have taken away from the person trained to be an advocate the principal cause of his aggravation — his clients. Now, the supervisor sees his adversaries, the main sources of his worry, as the lawyers he supervises. Naturally he resents them and blames them for his stress and making his job harder. Same with the judge. He no longer has any clients and must get back at those who appear before him. He knows every lie and trick they may try in order to avoid responsibility for their conduct and he is ready for them.***[***The D.A. who becomes a judge is in a slightly different position: he still perceives that he is serving his “clients,” “The People”. He continues to be a tool of law enforcement.]The most frequent stories told by defense lawyers to amuse their colleagues or others are about the foolish things their clients have done to foul up their cases. As examples, below is a list of things my clients have done. Every defense lawyer can claim similar events.They drop the dope on the street right in front of the oncoming marked police car. (“That’s not possession, is it, if I throw it away?”) They leave the rest of the dope in the seat of the police car after they are removed. They waive their rights and sign a confession, admit to their homies over tapped phones, then adamantly deny all to their lawyers. (This often stems from a belief that a lawyer who you confess to will not “fight for you.”) They will insist on an impossible defense (such as alibi) when a perfectly reasonable one which conforms to the evidence is available. If you work out a wonderful disposition, they will turn it down even though it assures the maximum punishment. They will insist on testifying when it is clear that they will make a terrible witness and that relying on the lack of proof gives a better chance. After you have striven to suppress evidence of prior convictions for possession, they will testify: “Not only were these drugs not mine, but I have never seen drugs before.” Thereby causing a smiling judge to now permit impeachment by those priors. When they are convicted they will demand their file and try to appeal based on your “incompetence”. Stories about fumbled commission of crimes are common. Just one from my past: My client enters a fast food store, orders a burger, removes a $20 bill from his wallet. The cashier opens the register. My client draws his weapon, demands the money from the till, leaves . . . and leaves his wallet on the counter. Twenty minutes later he sees a police vehicle outside the store. He enters, “I want to report a stolen wallet.” The officer holds it, views the photo I.D. matching, the cashier confirms “That’s him.” The client tells me, “It must have been someone who looked like me who stole my wallet.”

"STUPID IS ... OR IS IT?"The tempting answer is that people like this are merely . . . Stupid. Certainly, I have found that I.Q. testing and records have sometimes shown clients to be under-achievers in school often with problems of ADHD or other cognitive defects that affect behavior. But stupidity does not answer the question. It is too vague, too convenient. And furthermore, it doesn’t account for the smart people who do stupid things.I put together this six pack of Unusual Suspects to illustrate the problem.

Number 1, 3, 4, and 6 are famous men who were thought of as the smartest in their field. Top of their classes at prestigious universities. Policy wonks. Numbers 3 and 6 were deemed to possess encyclopedic wisdom. Number 4 was known for his discipline and judgment on the course. [I will explain #5 below, and #2 at the end of my essay.]Each not only transgressed, but did so in a manner that seems in retrospect to be blatant and arrogant. Smart people like these should have anticipated they would be exposed considering their positions and the huge stakes at risk. (I might have added former governor Mark Sanford or any number of other politicians, athletes and celebrities who have fallen from grace in a similar scandal).One explanation for the frequency of this kind of conduct was offered by Dr. Frank Farley, former president of the American Psychiatric Association, who labeled them as “Type T Personalities.”The “T” stands for thrill seeker . . . the kind of person who chooses a risky career, apart from an ordinary life. He thrives on uncertainty, novelty. He becomes addicted to passion, craves the “drama” of the big stage with its attendant high wire act. He experiences life to the fullest: the rush of chemicals: Adrenaline . . . testosterone . . . dopamine — similar to intoxication and sexual desire. Dr. Fahey concludes: “You know what kind of decisions you make when you are intoxicated.”Doesn’t that sort of describe our clients . . . To a “T”?Oh, and just in case you thought this is limited to males, there are many examples of females who have fallen because of similar conduct.

Mary Kay Schmitz Letourneau is one notorious example. The daughter of Orange County congressman and John Bircher, John Schmitz, who was later revealed to have fathered two children during an extramarital affair. Mary Kay was married with children when she fell for one of her students, a precocious 12 year old boy. She was prosecuted when she became pregnant with his child and violated terms of her parole by continuing to see him, was imprisoned and later married him.

Ruth Snyder is another. Her story inspired the writing of “Double Indemnity.” In the 1920's she was a bored suburban housewife whose husband never got over the death of his high school crush, who died before he could marry her. Insensitively, Mr. Snyder never tired of reminding Ruth of his melancholy throughout their marriage and she was fed up. One day the doorbell rang and a handsome salesman entered. An affair ensued and the lovers conspired to kill Mr. Snyder after Ruth had secured his name on an insurance policy that paid double for violent death. One night she reported that an intruder had knocked her out and strangled her husband, stolen jewelry. It took police only a few hours to solve the crime: Ruth and her boyfriend had failed to show evidence of forced entry, had made Ruth’s injuries unconvincingly severe, and had left the supposedly stolen jewels under the mattress. Ruth confessed that night, blaming it on the boyfriend, who was caught, blamed it on her. They both fried in Sing Sing’s chair.[The famous picture of Ruth Snyder a moment after the switch was thrown was snapped from a camera hidden in the pants leg of a reporter.]So to the volatile soup of power and sex, add greed as another impulse for taking foolish risks.AKRASIAIn our 6 Pack, #5 is Alan Greenspan. He is apparently happily married to newswoman Andrea Mitchell. But he is notable because, as chairman of the Federal Reserve Board, he was a respected expert on the financial world, often a reasonable voice urging caution in economic policies. Yet, he utterly failed to anticipate the meltdown of markets in 2008 due to the disastrous risks taken by established banks and other conservative institutions. Afterward, he evinced head scratching embarrassed puzzlement that the logical inherent restraints of the free market did not cause institutions to act in their best interests in protecting their investors and consumers.Greenspan had been an influential proponent of de-regulation, arguing that operators in the free market would be internally checked by the need to act reasonably in its own best interests. What Greenspan failed to consider was the temptation of greed, the emotions overwhelming “conservative” values of caution. There is a recognized description of this human behavior. AKRASIA, which is defined as the state of acting against one’s better judgment.Plato in his writing, describes Socrates as being appalled at the notion that people might act in such a way: “No one goes willingly toward the bad.” ... A person, according to Socrates, never chooses to act poorly or against his better judgment; actions that go against what is best are only a product of being ignorant of facts or knowledge of what is best or good. Later observers (philosophers, theologians, psychologists) have disagreed and the consensus is now that the phenomenon is so common as to be normal. Suggested reasons delve into the reasoning process, how the mind makes the choices between logic and emotion, the evaluation of comparative goals, and moral valuation. The traits which most define our client’s behavior include:1. Impulsiveness2. Poor risk assessment3. Self-destructive ideation and behavior4. Selfishness and inconsiderateness of others5. Denial of responsibility for actions; shifting blame to others or society6. Denial of obvious facts7. Perception of self as victim of unfairness8. Mood swings, emotional instability, rage, depression, etc.9. Reliance on peers in making choices10. Testing limits of authority11. Experiments with substances for self-medicationThese are the exact traits that define adolescence. It is not unexpected that statistics prove that the years in which people commit the most crimes are between age 16 and 29. It is apparent that our clients are acting out in the manner of teenagers. Recent scientific breakthroughs have pinpointed a possible cause of such behavior in physiological findings. Dr. Jay Giedd of National Institute of Mental Health is one among a group of medical experts who have been experimenting with the brains of adolescents through use of Functional MRI’s.These experiments suggest that although the adolescent brain is fully developed in size, it is far from mature. The cause seems to be in the neural “wiring” that continues to develop in complexity past adolescence far into adulthood. The wiring is needed for the brain to fully perceive threats, to acquire complete knowledge of facts in order to make reasoned judgments.The deficiency is particularly apparent during times of stress (such and when our clients must decide whether to respond violently to any situation: fight or flight). And the adolescent is hard wired to be influenced by his peers, even their mere presence, when he has to make decisions. He is more likely to act rashly, aggressively, seeking the approval of his peers and wishing to impress them.Unfortunately for our profession, this study may be dangerous. The implication that our clients cannot alter their behavior because they are hard wired to misbehave violently might be construed as defining psychopaths or sociopaths, impervious to rehabilitation, undeterrable by threats of punishment.However, it does suggest that the passage of some time, enough for the brain to mature, will alleviate the risk of future criminality among young adults. Thus, the lengthy imprisonment of young offenders is not needed. They will cease to be a threat sooner than previously thought.****

****[This trend of evidence led to the U.S. Supreme Court’s ruling that life without parole was cruel and unusual punishment in violation of the 8th Amendment when applied to juveniles.]RISKY BUSINESSIn a real sense, risky behavior is not exclusive to our clients, although it is a hallmark of their personalities. We have all transgressed. Throughout our lives. As toddlers, we test our parents patience by misbehavior. We act contrary to their warnings. Stay up late. Violate the rules. Get punished and do it again. Get away with it time after time. In school, we don’t do our homework, cheat on an exam, cut a class, smoke a joint in the bathroom. Feel the rush of fear of being caught. Being called on in class while unprepared. When you drive on the freeway. In your mirror you see the blue and red bar, the CHP cruiser! You look down, you are going 80! You take your foot from the pedal, tap the brake, slow. The cruiser speeds up . . . passes you, does for the red sports car doing 90. You monitor your heart rate. The adrenaline, the dry mouth. That was the rush of adrenaline, dopamine, testosterone. The dizziness, the rush. Did you then avoid that feeling? ... Or did you crave it? Was it frightening? Or exciting?Always following the rules is boring. We need drama in our lives, either vicariously, through our entertainments: sports, video games, role playing fantasies, films . . . Or in our lives. Possessing a weapon is thrilling . . . The weight of it, the coldness of the steel, the shape of the handle. The sense that it is dangerous. So easy to pull the trigger and . . . Risk taking is not only normal. It can be a good thing.We all take risks in our lives. It is what we do when we take our first steps, ride a two wheeler, take our first swing at a baseball, ask a girl for a date, fall in love, give ourselves emotionally to a mate, decide to have a child, or choose a career with the responsibility for another’s life in our hands.There are those who act impulsively in making these choices. They usually wind up in divorce courts, bankruptcy courts, dependency courts, rather than criminal courts. If they avoid courts, they may not avoid the therapist’s couch, sometimes over and over again.They do other things our clients do. They abuse medications, themselves, or others.

“Most men lead lives of quiet desperation and go to the grave with the song still in them.”Henry David Thoreau, Civil Disobedience and Other EssaysAnd that brings us back to our 6 pack. Number 2 is my current client. He is accused of committing 10 robberies of small stores. In the first few, the culprit wore a ski mask and gloves, showed the gun, took the money, zip, less than three minutes. Captured on video but not very helpful. Then in one of them, his partner was delayed, taking candy from the displays before leaving. So he goes back into the store — after removing his mask from the lower part of his face exposing a distinctive goatee. The video image helps

police make an ID. In the next few robberies, he doesn’t bother to wear a mask or gloves, his hairline, goatee uncovered. He touches items, leaves latent prints. In another he spits on the floor, leaving DNA. Some of the incidents are weaker than others, guilt depending on the inference that the same person committed all of them. But the M.O. is not so distinctive. In fact, other similar crimes by attributed to other suspects have occurred around the same time to similar and in some cases the same stores. Realistically, his best chance is to admit one or two of the charges and deny the others, thereby limiting his exposure.But no, my client insists on an alibi defense, claiming to have been in Mexico, coincidentally, from the date of the first crime until the date of the last crime. So I should not be worried. Right?

As an addendum to this post, I must add another confession, which is pertinent to the subject.

The elderly gentleman shown here is my mother's father, my Papa Hymie. The chubby kid is me, @ 3 or 4, I would guess, on the beach at Coney Island. I remember Papa Hymie as a dignified grandfatherly presence throughout my childhood and my siblings and all other relatives treasure his memory as well. He was born in 1886 in Kiev and came here as teen, I believe. I used to love to listen to his stories about seeing prize fights with Jack Johnson and Jack Dempsey. He liked sports, especially "the ponies". He used to joke that the horses he followed followed other horses. Recently I researched family members online and found this:

It may be hard to read. It is a copy of a page in the New York Sun in 1934. The story on column one relates crime news, including an arrest of Herman Boriskin for involvement in a confidence scam involving the "policy racket" which was a common gambling scheme (an illegal lottery) among tenement dwellers in the Great Depression, especially recent immigrants who dreamed of hitting it big. The reason I am including this is that it suggests to me that I should not be overly judgmental about our clients. They are really not all that far from our lives after all.